110 So. 845 | Miss. | 1927
There was no conflict in the material evidence in the case. The question was therefore one for the court, and not the jury. The court should have directed a verdict one way or the other.
The following is deemed a sufficient statement of the case to develop the questions involved: Section 1, chapter 90, Laws of 1904, abolished the office of tax collector of the board of Mississippi levee commissioners. By that act the board was authorized to have the cotton tax collected in its district in such manner as it deemed best, at a cost of not exceeding two cents per bale. Since the adoption of that act the board has employed a cotton tax collector every two years, and paid him a commission of two cents per bale on all cotton on which the cotton tax was paid. At the regular July, 1924, meeting *583 of the board, there were two levee boards attempting to function. The board is composed of seven members. One board was organized with S.F. Witherspoon and three other members; the other board was organized with Waddy West and three other members. For convenience, these boards will be referred to as the Witherspoon board and the West board, respectively. The title of the various members of the board to their offices was unquestioned, except as to Witherspoon and West. The former had been commissioned as such, and had been an acting member of the board for some years previous to the July, 1924, meeting. West had recently been appointed by the Governor, and commissioned as a member of the board At the July, 1924, meeting both the Witherspoon board and the West board assumed to function separately as the legal board of levee commissioners. At that meeting the Witherspoon board passed an order electing appellees as cotton tax collectors for the levee district for a two-year term, beginning with the date of that meeting. The West board passed an order electing A.E. Graham tax collector for the levee district for the same term, beginning with the date of that meeting. Each of these boards continued to function and carry on the business of the levee board until the circuit court of Washington county rendered a judgment ousting Witherspoon from membership of the board, and adjudging West, instead of Witherspoon, to be the legal member of the board. That cause was brought up to the supreme court, and the judgment of the lower court affirmed.
At the regular October, 1924, meeting of the board, after Witherspoon had been ousted by the judgment of the circuit court of Washington county, the board passed another order again electing A.E. Graham cotton tax collector for the levee district.
Appellees undertake to sustain the judgment of the trial court upon the authority of section 3473, Code of 1906, section 2811, Hemingway's Code, as well as the common law, which declares valid the acts of a de facto *584 officer while in possession of the office, performing the functions thereof. The statute referred to is in the following language:
"The official acts of any person in possession of a public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right, or without being qualified according to law."
In Cooper v. Moore,
Reversed, and judgment here for appellant.
Reversed.